CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT

No. 97-1192. Argued June 8, 1998 - Decided June 25, 1998

Syllabus

When various investigations of the 1993 dismissal of White House Travel
Office employees were beginning, Deputy White House Counsel Vincent W. Foster,
Jr., met with petitioner Hamilton, an attorney at petitioner law firm, to
seek legal representation. Hamilton took handwritten notes at their meeting.
Nine days later, Foster committed suicide. Subsequently, a federal grand
jury, at the Independent Counsel's request, issued subpoenas for, inter
alia , the handwritten notes as part of an investigation into whether
crimes were committed during the prior investigations into the firings.
Petitioners moved to quash, arguing, among other things, that the notes
were protected by the attorney-client privilege. The District Court agreed
and denied enforcement of the subpoenas. In reversing, the Court of Appeals
recognized that most courts assume the privilege survives death, but noted
that such references usually occur in the context of the well-recognized
testamentary exception to the privilege allowing disclosure for disputes
among the client's heirs. The court declared that the risk of posthumous
revelation, when confined to the criminal context, would have little to
no chilling effect on client communication, but that the costs of protecting
communications after death were high. Concluding that the privilege is not
absolute in such circumstances, and that instead, a balancing test should
apply, the court held that there is a posthumous exception to the privilege
for communications whose relative importance to particular criminal litigation
is substantial.

Held : Petitioner's notes are protected by the attorney-client
privilege. This Court's inquiry must be guided by "the principles of
the common law ... as interpreted by the courts ... in light of reason and
experience." Fed. Rule Evid. 501. The relevant case law demonstrates
that it has been overwhelmingly, if not universally, accepted, for well
over a century, that the privilege survives the client's death in a case
such as this. While the Independent Counsel's arguments against the privilege's
posthumous survival are not frivolous, he has simply not satisfied his burden
of showing that "reason and experience" require a departure from
the common-law rule. His interpretation-that the testamentary exception
supports the privilege's posthumous termination because in practice most
cases have refused to apply the privilege posthumously; that the exception
reflects a policy judgment that the interest in settling estates outweighs
any posthumous interest in confidentiality; and that, by analogy, the interest
in determining whether a crime has been committed should trump client confidentiality,
particularly since the estate's financial interests are not at stake-does
not square with the case law's implicit acceptance of the privilege's survival
and with its treatment of testamentary disclosure as an "exception"
or an implied "waiver." And his analogy's premise is incorrect,
since cases have consistently recognized that the testamentary exception
furthers the client's intent, whereas there is no reason to suppose the
same is true with respect to grand jury testimony about confidential communications.
Knowing that communications will remain confidential even after death serves
a weighty interest in encouraging a client to communicate fully and frankly
with counsel; posthumous disclosure of such communications may be as feared
as disclosure during the client's lifetime. The Independent Counsel's suggestion
that a posthumous disclosure rule will chill only clients intent on perjury,
not truthful clients or those asserting the Fifth Amendment, incorrectly
equates the privilege against self-incrimination with the privilege here
at issue, which serves much broader purposes. Clients consult attorneys
for a wide variety of reasons, many of which involve confidences that are
not admissions of crime, but nonetheless are matters the clients would not
wish divulged. The suggestion that the proposed exception would have minimal
impact if confined to criminal cases, or to information of substantial importance
in particular criminal cases, is unavailing because there is no case law
holding that the privilege applies differently in criminal and civil cases,
and because a client may not know when he discloses information to his attorney
whether it will later be relevant to a civil or criminal matter, let alone
whether it will be of substantial importance. Balancing ex post the
importance of the information against client interests, even limited to
criminal cases, introduces substantial uncertainty into the privilege's
application and therefore must be rejected. The argument that the existence
of, e.g., the crime-fraud and testamentary exceptions to the privilege
makes the impact of one more exception marginal fails because there is little
empirical evidence to support it, and because the established exceptions,
unlike the proposed exception, are consistent with the privilege's purposes.
Indications in United States v. Nixon, 418 U.S. 683, 710,
and Branzburg v. Hayes , 408 U.S. 665, that privileges must
be strictly construed as inconsistent with truth seeking are inapposite
here, since those cases dealt with the creation of privileges not recognized
by the common law, whereas here, the Independent Counsel seeks to narrow
a well-established privilege. Pp. 3-11.

Petitioner, an attorney, made notes of an initial interview with a client
shortly before the client's death. The Government, represented by the Office
of Independent Counsel, now seeks his notes for use in a criminal investigation.
We hold that the notes are protected by the attorney-client privilege.

This dispute arises out of an investigation conducted by the Office of
the Independent Counsel into whether various individuals made false statements,
obstructed justice, or committed other crimes during investigations of the
1993 dismissal of employees from the White House Travel Office. Vincent
W. Foster, Jr., was Deputy White House Counsel when the firings occurred.
In July, 1993, Foster met with petitioner James Hamilton, an attorney at
petitioner Swidler Berlin, to seek legal representation concerning possible
congressional or other investigations of the firings. During a 2-hour meeting,
Hamilton took three pages of handwritten notes. One of the first entries
in the notes is the word "Privileged." Nine days later, Foster
committed suicide.

In December 1995, a federal grand jury, at the request of the Independent
Counsel, issued subpoenas to petitioners Hamilton and Swidler Berlin for,
inter alia , Hamilton's handwritten notes of his meeting with Foster.
Petitioners filed a motion to quash, arguing that the notes were protected
by the attorney client privilege and by the work product privilege. The
District Court, after examining the notes in camera , concluded they
were protected from disclosure by both doctrines and denied enforcement
of the subpoenas.

The Court of Appeals for the District of Columbia Circuit reversed. In
re Sealed Case , 124 F. 3d 230 (1997). While recognizing that most courts
assume the privilege survives death, the Court of Appeals noted that holdings
actually manifesting the posthumous force of the privilege are rare. Instead,
most judicial references to the privilege's posthumous application occur
in the context of a well recognized exception allowing disclosure for disputes
among the client's heirs. Id., at 231-232. It further noted that
most commentators support some measure of posthumous curtailment of the
privilege. Id., at 232. The Court of Appeals thought that the risk
of posthumous revelation, when confined to the criminal context, would have
little to no chilling effect on client communication, but that the costs
of protecting communications after death were high. It therefore concluded
that the privilege was not absolute in such circumstances, and that instead,
a balancing test should apply. Id., at 233-234. It thus held that
there is a posthumous exception to the privilege for communications whose
relative importance to particular criminal litigation is substantial. Id.,
at 235. While acknowledging that uncertain privileges are disfavored,
Jaffee v. Redmond, 518 U.S. 1, 17-18 (1996), the Court of Appeals
determined that the uncertainty introduced by its balancing test was insignificant
in light of existing exceptions to the privilege. 124 F. 3d, at 235. The
Court of Appeals also held that the notes were not protected by the work
product privilege.

The dissenting judge would have affirmed the District Court's judgment
that the attorney client privilege protected the notes. Id., at 237.
He concluded that the common-law rule was that the privilege survived death.
He found no persuasive reason to depart from this accepted rule, particularly
given the importance of the privilege to full and frank client communication.
Id., at 237.

Petitioners sought review in this Court on both the attorney client privilege
and the work product privilege. 1 We granted certiorari, 523 U. S. __ (1998),
and we now reverse.

The attorney client privilege is one of the oldest recognized privileges
for confidential communications. Upjohn Co. v. United States,
449 U.S. 383, 389 (1981); Hunt v. Blackburn, 128 U.S. 464,
470 (1888). The privilege is intended to encourage "full and frank
communication between attorneys and their clients and thereby promote broader
public interests in the observance of law and the administration of justice."
Upjohn, supra, at 389 . The issue presented here is the scope
of that privilege; more particularly, the extent to which the privilege
survives the death of the client. Our interpretation of the privilege's
scope is guided by "the principles of the common law... as interpreted
by the courts ... in the light of reason and experience." Fed. Rule
Evid. 501; Funk v. United States, 290 U.S. 371 (1933).

The Independent Counsel argues that the attorney-client privilege should
not prevent disclosure of confidential communications where the client has
died and the information is relevant to a criminal proceeding. There is
some authority for this position. One state appellate court, Cohen
v. Jenkintown Cab Co. , 238 Pa. Super. 456, 357 A. 2d 689 (1976),
and the Court of Appeals below have held the privilege may be subject to
posthumous exceptions in certain circumstances. In Cohen , a civil
case, the court recognized that the privilege generally survives death,
but concluded that it could make an exception where the interest of justice
was compelling and the interest of the client in preserving the confidence
was insignificant. Id., 462-464, 357 A.2d, at 692-693.

But other than these two decisions, cases addressing the existence of
the privilege after death-most involving the testamentary exception-uniformly
presume the privilege survives, even if they do not so hold. See, e.g.,Mayberry v. Indiana , 670 N. E. 2d 1262 (Ind. 1996); Morris
v. Cain , 39 La. Ann. 712, 1 So. 797 (1887); People v.
Modzelewski , 611 N. Y. S. 2d 22, 203 A. 2d 594 (1994). Several State
Supreme Court decisions expressly hold that the attorney-client privilege
extends beyond the death of the client, even in the criminal context. See
In re John Doe Grand Jury Investigation , 408 Mass. 480, 481-483,
562 N. E. 2d 69, 70 (1990); State v. Doster , 276 S.C. 647,
650-651, 284 S. E. 2d 218, 219 (1981); State v. Macumber ,
112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976). In John Doe Grand Jury
Investigation , for example, the Massachusetts Supreme Court concluded
that survival of the privilege was "the clear implication" of
its early pronouncements that communications subject to the privilege could
not be disclosed at any time. 408 Mass., at 483, 562 N. E. 2d , at
70. The court further noted that survival of the privilege was "necessarily
implied" by cases allowing waiver of the privilege in testamentary
disputes. Ibid .

Indeed, in Glover v. Patten, 165 U.S. 394, 406-408 (1897),
this Court, in recognizing the testamentary exception, expressly assumed
that the privilege continues after the individual's death. The Court explained
that testamentary disclosure was permissible because the privilege, which
normally protects the client's interests, could be impliedly waived in order
to fulfill the client's testamentary intent. Id., at 407-408 (quoting
Blackburn v. Crawfords, 3 Wall. 175 (1866), and Russell
v. Jackson, supra ). The great body of this caselaw supports, either
by holding or considered dicta, the position that the privilege does survive
in a case such as the present one. Given the language of Rule 501, at the
very least the burden is on the Independent Counsel to show that "reason
and experience" require a departure from this rule.

The Independent Counsel contends that the testamentary exception supports
the posthumous termination of the privilege because in practice most cases
have refused to apply the privilege posthumously. He further argues that
the exception reflects a policy judgment that the interest in settling estates
outweighs any posthumous interest in confidentiality. He then reasons by
analogy that in criminal proceedings, the interest in determining whether
a crime has been committed should trump client confidentiality, particularly
since the financial interests of the estate are not at stake.

But the Independent Counsel's interpretation simply does not square with
the caselaw's implicit acceptance of the privilege's survival and with the
treatment of testamentary disclosure as an "exception" or an implied
"waiver." And the premise of his analogy is incorrect, since cases
consistently recognize that the rationale for the testamentary exception
is that it furthers the client's intent, see, e.g.,Glover, supra
. There is no reason to suppose as a general matter that grand jury testimony
about confidential communications furthers the client's intent.

Commentators on the law also recognize that the general rule is that
the attorney-client privilege continues after death. See, e.g., 8
Wigmore, Evidence §2323 (McNaughton rev. 1961); Frankel, The Attorney-Client
Privilege After the Death of the Client, 6 Geo. J. Legal Ethics 45, 78-79
(1992); 1 J. Strong, McCormick on Evidence §94, p. 348 (4th ed. 1992).
Undoubtedly, as the Independent Counsel emphasizes, various commentators
have criticized this rule, urging that the privilege should be abrogated
after the client's death where extreme injustice would result, as long as
disclosure would not seriously undermine the privilege by deterring client
communication. See, e.g., C. Mueller L. Kirkpatrick, 2 Federal Evidence
§199, at 380-381 (2d ed. 1994); Restatement (Third) of the Law
Governing Lawyers §127, Comment d (Proposed Final Draft No.
1, Mar. 29, 1996). But even these critics clearly recognize that established
law supports the continuation of the privilege and that a contrary rule
would be a modification of the common law. See, e.g., Mueller Kirkpatrick
, supra, at 379; Restatement of the Law Governing Lawyers , supra, §127, Comment c ; 24 C. Wright K. Graham, Federal Practice and
Procedure §5498, p. 483 (1986).

Despite the scholarly criticism, we think there are weighty reasons that
counsel in favor of posthumous application. Knowing that communications
will remain confidential even after death encourages the client to communicate
fully and frankly with counsel. While the fear of disclosure, and the consequent
withholding of information from counsel, may be reduced if disclosure is
limited to posthumous disclosure in a criminal context, it seems unreasonable
to assume that it vanishes altogether. Clients may be concerned about reputation,
civil liability, or possible harm to friends or family. Posthumous disclosure
of such communications may be as feared as disclosure during the client's
lifetime.

The Independent Counsel suggests, however, that his proposed exception
would have little to no effect on the client's willingness to confide in
his attorney. He reasons that only clients intending to perjure themselves
will be chilled by a rule of disclosure after death, as opposed to truthful
clients or those asserting their Fifth Amendment privilege. This is because
for the latter group, communications disclosed by the attorney after the
client's death purportedly will reveal only information that the client
himself would have revealed if alive.

The Independent Counsel assumes, incorrectly we believe, that the privilege
is analogous to the Fifth Amendment's protection against self-incrimination.
But as suggested above, the privilege serves much broader purposes. Clients
consult attorneys for a wide variety of reasons, only one of which involves
possible criminal liability. Many attorneys act as counselors on personal
and family matters, where, in the course of obtaining the desired advice,
confidences about family members or financial problems must be revealed
in order to assure sound legal advice. The same is true of owners of small
businesses who may regularly consult their attorneys about a variety of
problems arising in the course of the business. These confidences may not
come close to any sort of admission of criminal wrongdoing, but nonetheless
be matters which the client would not wish divulged.

The contention that the attorney is being required to disclose only what
the client could have been required to disclose is at odds with the basis
for the privilege even during the client's lifetime. In related cases, we
have said that the loss of evidence admittedly caused by the privilege is
justified in part by the fact that without the privilege, the client may
not have made such communications in the first place. See Jaffe ,
518 U. S., at 12; Fisher v. United States, 425 U.S. 391, 403
(1976). This is true of disclosure before and after the client's death.
Without assurance of the privilege's posthumous application, the client
may very well not have made disclosures to his attorney at all, so the loss
of evidence is more apparent than real. In the case at hand, it seems quite
plausible that Foster, perhaps already contemplating suicide, may not have
sought legal advice from Hamilton if he had not been assured the conversation
was privileged.

The Independent Counsel additionally suggests that his proposed exception
would have minimal impact if confined to criminal cases, or, as the Court
of Appeals suggests, if it is limited to information of substantial importance
to a particular criminal case. 3

However, there is no case authority for the proposition that the privilege
applies differently in criminal and civil cases, and only one commentator
ventures such a suggestion, see Mueller Kirkpatrick, supra, at 380-381.
In any event, a client may not know at the time he discloses information
to his attorney whether it will later be relevant to a civil or a criminal
matter, let alone whether it will be of substantial importance. Balancing
ex post the importance of the information against client interests,
even limited to criminal cases, introduces substantial uncertainty into
the privilege's application. For just that reason, we have rejected use
of a balancing test in defining the contours of the privilege. See Upjohn
, 449 U. S., at 393; Jaffee, supra, at 17-18.

In a similar vein, the Independent Counsel argues that existing exceptions
to the privilege, such as the crime fraud exception and the testamentary
exception, make the impact of one more exception marginal. However, these
exceptions do not demonstrate that the impact of a posthumous exception
would be insignificant, and there is little empirical evidence on this point.
4

The established exceptions are consistent with the purposes of the privilege,
see Glover , 165 U. S., at 407-408; United States v. Zolin, 491 U.S. 554, 562-563 (1989), while a posthumous exception in criminal cases
appears at odds with the goals of encouraging full and frank communication
and of protecting the client's interests. A "no harm in one more exception"
rationale could contribute to the general erosion of the privilege, without
reference to common law principles or "reason and experience."

Finally, the Independent Counsel, relying on cases such as United
States v. Nixon , 418 U.S. 683, 710 (1974), and Branzburg
v. Hayes , 408 U.S. 665 (1972), urges that privileges be strictly
construed because they are inconsistent with the paramount judicial goal
of truth seeking. But both Nixon and Branzburg dealt with
the creation of privileges not recognized by the common law, whereas here
we deal with one of the oldest recognized privileges in the law. And we
are asked, not simply to "construe" the privilege, but to narrow
it, contrary to the weight of the existing body of caselaw.

It has been generally, if not universally, accepted, for well over a
century, that the attorney-client privilege survives the death of the client
in a case such as this. While the arguments against the survival of the
privilege are by no means frivolous, they are based in large part on speculation-thoughtful
speculation, but speculation nonetheless-as to whether posthumous termination
of the privilege would diminish a client's willingness to confide in an
attorney. In an area where empirical information would be useful, it is
scant and inconclusive.

Rule 501's direction to look to "the principles of the common law
as they may be interpreted by the courts of the United States in the light
of reason and experience" does not mandate that a rule, once established,
should endure for all time. Funk v. United States , 290 U.S.
371, 381 (1933). But here the Independent Counsel has simply not made a
sufficient showing to overturn the common law rule embodied in the prevailing
caselaw. Interpreted in the light of reason and experience, that body of
law requires that the attorney client privilege prevent disclosure of the
notes at issue in this case. The judgment of the Court of Appeals is
Reversed.

Notes

1 Because we sustain the claim of attorney-client privilege, we do not
reach the claim of work product privilege.

2 About half the States have codified the testamentary exception by providing
that a personal representative of the deceased can waive the privilege when
heirs or devisees claim through the deceased client (as opposed to parties
claiming against the estate, for whom the privilege is not waived). See,
e.g., Ala. Rule Evid. 502 (1996); Ark. Code Ann. §1641-101,
Rule 502 (Supp. 1997); Neb. Rev. Stat. §27 503, Rule 503 (1995). These
statutes do not address expressly the continuation of the privilege outside
the context of testamentary disputes, although many allow the attorney to
assert the privilege on behalf of the client apparently without temporal
limit. See, e.g., Ark. Code Ann. §16-41101, Rule 502(c) (Supp.
1997). They thus do not refute or affirm the general presumption in the
case law that the privilege survives. California's statute is exceptional
in that it apparently allows the attorney to assert the privilege only so
long as a holder of the privilege (the estate's personal representative)
exists, suggesting the privilege terminates when the estate is wound up.
See Cal. Code Evid. Ann. §§954, 957 (West 1995). But no other
State has followed California's lead in this regard.

3 Petitioner, while opposing wholesale abrogation of the privilege in
criminal cases, concedes that exceptional circumstances implicating a criminal
defendant's constitutional rights might warrant breaching the privilege.
We do not, however, need to reach this issue, since such exceptional circumstances
clearly are not presented here.

4 Empirical evidence on the privilege is limited. Three studies do not
reach firm conclusions on whether limiting the privilege would discourage
full and frank communication. Alexander, The Corporate Attorney Client Privilege:
A Study of the Participants, 63 St. John's L. Rev. 191 (1989); Zacharias,
Rethinking Confidentiality, 74 Iowa L. Rev. 352 (1989); Comment, Functional
Overlap Between the Lawyer and Other Professionals: Its Implications for
the Privileged Communications Doctrine, 71 Yale L. J. 1226 (1962). These
articles note that clients are often uninformed or mistaken about the privilege,
but suggest that a substantial number of clients and attorneys think the
privilege encourages candor. Two of the articles conclude that a substantial
number of clients and attorneys think the privilege enhances open communication,
Alexander, supra , at 244-246, 261, and that the absence of a privilege
would be detrimental to such communication, Comment, 71 Yale L. J. ,
supra, at 1236. The third article suggests instead that while the privilege
is perceived as important to open communication, limited exceptions to the
privilege might not discourage such communication, Zacharias , supra,
at 382, 386. Similarly, relatively few court decisions discuss the impact
of the privilege's application after death. This may reflect the general
assumption that the privilege survives-if attorneys were required as a matter
of practice to testify or provide notes in criminal proceedings, cases discussing
that practice would surely exist.

Although the attorney-client privilege ordinarily will survive the death
of the client, I do not agree with the Court that it inevitably precludes
disclosure of a deceased client's communications in criminal proceedings.
In my view, a criminal defendant's right to exculpatory evidence or a compelling
law enforcement need for information may, where the testimony is not available
from other sources, override a client's posthumous interest in confidentiality.

We have long recognized that "[t]he fundamental basis upon which
all rules of evidence must rest-if they are to rest upon reason-is their
adaptation to the successful development of the truth." Funk
v. United States, 290 U.S. 371, 381 (1933). In light of the heavy
burden that they place on the search for truth, see United States
v. Nixon, 418 U.S. 683, 708-710 (1974), "[e]videntiary privileges
in litigation are not favored, and even those rooted in the Constitution
must give way in proper circumstances," Herbert v. Lando,
441 U.S. 153, 175 (1979). Consequently, we construe the scope of privileges
narrowly. See Jaffee v. Redmond, 518 U.S. 1, 19 (1996) (SCALIA
, J., dissenting); see also University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). We are reluctant to recognize a privilege or read
an existing one expansively unless to do so will serve a "public good
transcending the normally predominant principle of utilizing all rational
means for ascertaining truth." Trammel v. United States,
445 U.S. 40, 50 (1980) (internal quotation marks omitted).

The attorney-client privilege promotes trust in the representational
relationship, thereby facilitating the provision of legal services and ultimately
the administration of justice. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The systemic benefits of the privilege are commonly
understood to outweigh the harm caused by excluding critical evidence. A
privilege should operate, however, only where "necessary to achieve
its purpose," see Fisher v. United States, 425 U.S. 391,
403 (1976), and an invocation of the attorney-client privilege should not
go unexamined "when it is shown that the interests of the administration
of justice can only be frustrated by [its] exercise," Cohen
v. Jenkintown Cab Co. , 238 Pa. Super. 456, 464, 357 A. 2d 689, 693-694
(1976).

I agree that a deceased client may retain a personal, reputational, and
economic interest in confidentiality. See ante , at 7. But, after
death, the potential that disclosure will harm the client's interests has
been greatly diminished, and the risk that the client will be held criminally
liable has abated altogether. Thus, some commentators suggest that terminating
the privilege upon the client's death "could not to any substantial
degree lessen the encouragement for free disclosure which is [its] purpose."
1 J. Strong, McCormick on Evidence §94, p. 350 (4th ed. 1992); see
also Restatement (Third) of the Law Governing Lawyers §127, Comment d (Proposed Final Draft No. 1, Mar. 29, 1996). This diminished risk
is coupled with a heightened urgency for discovery of a deceased client's
communications in the criminal context. The privilege does not "protect[]
disclosure of the underlying facts by those who communicated with the attorney,"
Upjohn , supra , at 395, and were the client living, prosecutors
could grant immunity and compel the relevant testimony. After a client's
death, however, if the privilege precludes an attorney from testifying in
the client's stead, a complete "loss of crucial information" will
often result, see 24 C. Wright K. Graham, Federal Practice and Procedure
§5498, p. 484 (1986).

As the Court of Appeals observed, the costs of recognizing an absolute
posthumous privilege can be inordinately high. See In re Sealed Case
, 124 F. 3d 230, 233-234 (CADC 1997). Extreme injustice may occur, for example,
where a criminal defendant seeks disclosure of a deceased client's confession
to the offense. See State v. Macumber , 112 Ariz. 569, 571,
544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury
Investigation , 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan,
J., dissenting). In my view, the paramount value that our criminal justice
system places on protecting an innocent defendant should outweigh a deceased
client's interest in preserving confidences. See, e.g. , Schlup
v. Delo, 513 U.S. 298, 324-325 (1995); In re Winship, 397
U.S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioner acknowledges
that an exception may be appropriate where the constitutional rights of
a criminal defendant are at stake. An exception may likewise be warranted
in the face of a compelling law enforcement need for the information. "[O]ur
historic commitment to the rule of law ... is nowhere more profoundly manifest
than in our view that the twofold aim of criminal justice is that guilt
shall not escape or innocence suffer." Nixon , supra
, at 709 (internal quotation marks omitted); see also Herrera v.
Collins, 506 U.S. 390, 398 (1993). Given that the complete exclusion
of relevant evidence from a criminal trial or investigation may distort
the record, mislead the factfinder, and undermine the central truth-seeking
function of the courts, I do not believe that the attorney-client privilege
should act as an absolute bar to the disclosure of a deceased client's communications.
When the privilege is asserted in the criminal context, and a showing is
made that the communications at issue contain necessary factual information
not otherwise available, courts should be permitted to assess whether interests
in fairness and accuracy outweigh the justifications for the privilege.

A number of exceptions to the privilege already qualify its protections,
and an attorney "who tells his client that the expected communications
are absolutely and forever privileged is oversimplifying a bit." 124
F. 3d, at 235. In the situation where the posthumous privilege most frequently
arises-a dispute between heirs over the decedent's will-the privilege is
widely recognized to give way to the interest in settling the estate. See Glover v. Patten, 165 U.S. 394, 406-408 (1897). This testamentary
exception, moreover, may be invoked in some cases where the decedent would
not have chosen to waive the privilege. For example, "a decedent might
want to provide for an illegitimate child but at the same time much prefer
that the relationship go undisclosed." 124 F. 3d, at 234. Among the
Court's rationales for a broad construction of the posthumous privilege
is its assertion that "[m]any attorneys act as counselors on personal
and family matters, where, in the course of obtaining the desired advice,
confidences about family members or financial problems must be revealed
... which the client would not wish divulged." Ante , at 8.
That reasoning, however, would apply in the testamentary context with equal
force. Nor are other existing exceptions to the privilege-for example, the
crime-fraud exception or the exceptions for claims relating to attorney
competence or compensation-necessarily consistent with "encouraging
full and frank communication" or "protecting the client's interests,"
ante , at 10. Rather, those exceptions reflect the understanding
that, in certain circumstances, the privilege " 'ceases to operate'
" as a safeguard on "the proper functioning of our adversary system."
See United States v. Zolin, 491 U.S. 554, 562563 (1989).

Finally, the common law authority for the proposition that the privilege
remains absolute after the client's death is not a monolithic body of precedent.
Indeed, the Court acknowledges that most cases merely "presume the
privilege survives," see ante , at 4-5, and it relies on the
case law's "implicit acceptance" of a continuous privilege, see
ante , at 6. Opinions squarely addressing the posthumous force of the
privilege "are relatively rare." See 124 F. 3d, at 232. And even
in those decisions expressly holding that the privilege continues after
the death of the client, courts do not typically engage in detailed reasoning,
but rather conclude that the cases construing the testamentary exception
imply survival of the privilege. See, e.g. , Glover , supra
, at 406-408; see also Wright Graham, supra , §5498, at 484
("Those who favor an eternal duration for the privilege seldom do much
by way of justifying this in terms of policy").

Moreover, as the Court concedes, see ante , at 4, 6, there is
some authority for the proposition that a deceased client's communications
may be revealed, even in circumstances outside of the testamentary context.
California's Evidence Code, for example, provides that the attorney client
privilege continues only until the deceased client's estate is finally distributed,
noting that "there is little reason to preserve secrecy at the expense
of excluding relevant evidence after the estate is wound up and the representative
is discharged." Cal. Evid. Code Ann. §954, and comment, p. 232,
§952 (West 1995). And a state appellate court has admitted an attorney's
testimony concerning a deceased client's communications after "balanc[ing]
the necessity for revealing the substance of the [attorney-client conversation]
against the unlikelihood of any cognizable injury to the rights, interests,
estate or memory of [the client]." See Cohen , supra , at 464, 357 A. 2d, at 693. The American Law Institute, moreover,
has recently recommended withholding the privilege when the communication
"bears on a litigated issue of pivotal significance" and has suggested
that courts "balance the interest in confidentiality against any exceptional
need for the communication." Restatement (Third) of the Law Governing
Lawyers §127, at 431, Comment d ; see also 2 C. Mueller L. Kirkpatrick,
Federal Evidence, §199, p. 380 (2d ed. 1994) ("[I]f a deceased
client has confessed to criminal acts that are later charged to another,
surely the latter's need for evidence sometimes outweighs the interest in
preserving the confidences").

Where the exoneration of an innocent criminal defendant or a compelling
law enforcement interest is at stake, the harm of precluding critical evidence
that is unavailable by any other means outweighs the potential disincentive
to forthright communication. In my view, the cost of silence warrants a
narrow exception to the rule that the attorney-client privilege survives
the death of the client. Moreover, although I disagree with the Court of
Appeals' notion that the context of an initial client interview affects
the applicability of the work product doctrine, I do not believe that the
doctrine applies where the material concerns a client who is no longer a
potential party to adversarial litigation.

Accordingly, I would affirm the judgment of the Court of Appeals. Although
the District Court examined the documents in camera , it has not
had an opportunity to balance these competing considerations and decide
whether the privilege should be trumped in the particular circumstances
of this case. Thus, I agree with the Court of Appeals' decision to remand
for a determination whether any portion of the notes must be disclosed.